Do Oral Arguments Affect Supreme Court Justices?

There just seems to be a misunderstanding here about what arguments can and can’t do. Rosen may think that an alternative argument is a better argument—and his theory sounds reasonable to me—but it’s very hard to see how an alternative argument would actually “have made it harder” for the conservative majority to reverse decades of precedent. What would prevent the conservative majority from reversing decades of precedent would be if [the conservative justices] didn’t want to gut campaign finance regulation. Insofar as they do want to do that, Elana Kagan can’t stop them with the sheer force of her argument.

Yglesias may indeed be correct in this instance. But it’s worth noting the evidence that oral arguments can matter:

We posit that Supreme Court oral arguments provide justices with useful information that influences their final votes on the merits. To examine the role of these proceedings, we ask the following questions: (1) what factors influence the quality of arguments presented to the Court; and, more importantly, (2) does the quality of a lawyer’s oral argument affect the justices’ final votes on the merits? We answer these questions by utilizing a unique data source—–evaluations Justice Blackmun made of the quality of oral arguments presented to the justices. Our analysis shows that Justice Blackmun’s grading of attorneys is somewhat influenced by conventional indicators of the credibility of attorneys and are not simply the product of Justice Blackmun’s ideological leanings. We thus suggest they can plausibly be seen as measuring the quality of oral argument. We further show that the probability of a justice voting for a litigant increases dramatically if that litigant’s lawyer presents better oral arguments than the
competing counsel. These results therefore indicate that this element of the Court’s decisional process affects final votes on the merits, and it has implications for how other elite decision makers evaluate and use information.

That is from a 2006 paper by Timothy Johnson, my GW colleague Paul Wahlbeck, and James Spriggs. They examine a random sample of the Court’s cases from 1970-94 (539 in all). The Blackmun data are very cool.

To be sure, a lawyer’s oral argument is more powerful among justice who are ideologically closer to the lawyer’s position. But even justices on the opposite side can be influenced by a “good” argument.

Of course, these results are average effects across a set of cases, and do not necessarily imply that oral arguments are effective in every case, such as the one before the Court this week. As Yglesias notes:

But the whole reason people are now assuming that the court will overturn precedent is that at oral arguments the Justices gave the impression of having already made up their minds.

That may be true. But, as Rick Hasen—who is also skeptical that the Court will uphold the Austin precedent—states:

As I noted, I cannot with confidence make predictions about the outcome of the Citizens United case based on oral argument questions, given the recent experience in NAMUDNO in which CJ Roberts and Justice Kennedy seemed sure votes to overturn section 5 of the Voting Rights Act but did not.

The briefs are more important than oral argument. The justices, with the aid of their many clerks, spend quite a bit of time on the briefs and prepare questions they might ask in the course of oral argument. Some of the questions may challenge not only a statement during oral argument but statements in the brief of the attorney questioned. Surely ideology of a justice is part of such questioning. It is not clear what interaction takes place after briefs are filed and before oral argument between the justices or between the clerks of the justices with respect to a case. But oral argument can be a “GOTCHA” moment. I seriously doubt the spontaneity of questions of the justices. It should be kept in mind that following a decision by the Supreme Court, research focuses more upon the contents of the briefs rather than what took place in oral argument. Some researchers might wonder why the Court’s decision may have overlooked serious issues taken up in the briefs. This could impact upon the reputation of the Justice authoring the decision.

It’s been a few years since I read Edward Lazarus’ “Closed Chambers: The Rise, Fall and Future of the Modern Supreme Court” published about 10 years ago. He reports upon his experiences as a clerk to Justice Blackman on the machinations within the Rhenquist Court. It may be time for a reread.

The recent oral arguments on campaign financing have to be viewed by going back several months to the Court’s deferral on the appeal calling for further briefs expanding the issues to be addressed. Perhaps someday in the far future there will be revealed the machinations involved with this deferral. I have been researching the 1850s for quite some time and learned more of the deferral of the opinions of the Court/justices in the Dred Scott case heard in 1856 until AFTER the 1856 presidential campaign was won by Buchanon. Politics? Ideology?

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